Originally published in Crain's Chicago Business
No one can argue that bullying is bad, in the schoolyard or in the workplace. Efforts to increase awareness of bullying are laudable. In a public service announcement on Facebook, President Barack Obama said bullying "affects every single young person in our country."
Acts of "bullying" can lead to absenteeism, drug and alcohol abuse, and mental health issues. This is particularly true where the conduct is directed toward children or young adults.
Of course, well-intentioned public sentiment does not always coalesce into good law. Along these lines, Illinois has joined 27 state legislatures that have introduced measures that would ban bullying in the workplace. The Workplace Bullying Prohibition Act prevents any "severe or pervasive physical or verbal act or conduct" that places a person "in reasonable fear of harm," has a "detrimental effect on the person's physical or mental health," substantially interferes with the person's "productivity" or substantially interferes with "the ability of the employee to benefit from opportunities provided by the employer."
The bill's broad language creates obvious problems. Murky and ill-defined standards are difficult to administer with any uniformity. Under the WBPA, the employer must file a workplace bullying policy with the Illinois Department of Labor. The department "shall monitor the implementation" of these policies, which should be updated every two years. While the WBPA provides for a fine of "not more than $2,000 for each violation" of the law, the total number of violations an employer might face is also unclear.
A DRAG ON THE SYSTEM
In reviewing the bill, a Supreme Court opinion came to mind. One of the Supreme Court's most oft-cited admonitions in defining sexual harassment under federal discrimination law was that Title VII (a federal statute) should be not interpreted as a "general civility code for the American workplace."
In effect, the WBPA unnecessarily purports to do just that. Moreover, Illinois employers already have personnel policies in place to help employees report inappropriate or boorish behavior.
Is the bill a sign of regulatory Armageddon for Illinois small business? No, but there is a pernicious, cumulative effect of such legislation. Compliance costs and legal fees serve as a drag on business investment. And in an environment where state and city budgets are threatened by massive, unfunded pension liabilities, it is not trite to say that priorities matter.
Administering the WBPA undoubtedly would require additional resources at Illinois' Department of Labor. Ultimately, the law would find its way into the courts. While the envy of most of the world, our judicial system still grinds slowly and expensively, particularly when the legislation being administered is as vague and confounding as the WBPA.
Finally, it is worth pointing out that there already is a broad array of laws (both based in statute and lying in tort) that help combat bad behavior in the workplace and elsewhere. We do not need another tool in the toolkit. While the WBPA may reflect fine sentimentality, it is a bad law and should be rejected.
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